More Will Be Revealed . . .Prosecutor Jennifer Troiano

The other day, the Bad Lawyer was in a slight froth over the tabloid slamming of the Bronx ADA (assistant district attorney) charged, but not convicted of drunken driving.  I speculated that Jennifer Troiano (pic) had alienated someone with the Cops--turns out this was a good guess.

The New York Post published a follow up, the other day, reporting that prosecutor Troiano had ticked-off cops when she "boasted" that her connections would "take care of [the charges.]"  Separately, NYC cops are dealing with a scandal over alleged ticket fixing including wire-taps of at least one officer involved in making drunk driving allegation go-away.  Putting two and two together, you can see the motivation for dropping the dime on Ms. Troiano.

Part of the reason that this story caught my eye was that a young, fairly attractive lawyer was being pissed on by the Cops who in my experience would be falling all over themselves to cover-up for her.  Of course, the other part of it is that charges are not convictions--and,  this young professional is trashed on the front pages of a huge American newspaper over allegations of misconduct, well, it seems a wee bit over the top.  On the  otherhand, Ms. Troiano needs to get help, professional and otherwise if she wants a law career, nad the kind of help that she doesn't get by having a higher up "take care of it" for her.

Bronx Prosecutor Slammed for Alleged 2d DWI



Assistant District Attorney Jennifer Toiano

 DWI, OVI, DUI, OWI...it's all the same, an alphabet soup meaning the driver was drunk.  Yesterday, the NY Post was blasting an assistant Bronx District Attorney or ADA for continuing to prosecute cases while charges of DWI or whatever they call it in NYC are pending against her.  This is the Post account:

The Bronx assistant DA charged with drunken driving and suspected of using her juice to make an earlier DWI disappear is still prosecuting an amazing 75 cases -- which cops and defense lawyers yesterday called the height of hypocrisy.   'She should be fired outright. Anyone else would have been dismissed from their job a long time ago,' a police source said. 'She's a total disgrace to the Bronx DA's Office.'

Jennifer Troiano, 34, was arrested last August after she was found 'stumbling, falling down . . . on the cellphone walking in lanes of traffic"' after an accident on the Major Deegan Expressway, police said. She is awaiting trial for that arrest and also under investigation for a December 2009 incident, when she was brought to the 44th Precinct on suspicion of DWI only to have the arrest disappear after someone called the officers on her behalf, police sources have said.
But those two black eyes have yet to block her career path with the DA's office, where she works out of the Arson, Auto, Economic Crime Bureau. Her last trial was in March, and "She's in court all the time," a law-enforcement source told The Post.

Troiano's lenient treatment was especially infuriating to police officers, who face automatic 30-day suspensions and other disciplinary action if they are arrested.  'We don't even have to be arrested to be put on administrative leave or modified duty,' a Bronx cop said. 'Anybody can make an allegation against us and they take away your gun and badge so fast you won't believe it.'

The anger also extends to Troiano's own office.

'A lot of people in the DA's office are pissed,' said a defense lawyer who regularly works out of the Bronx courts. 'And we're like, how are you keeping your job?'

Steven Reed, a spokesman for Bronx DA Robert Johnson, said the office does not discipline employees based solely on arrests.

Cops and another defense lawyer found it ironic that a member of the DA's office investigating the massive NYPD ticket-fixing scandal may have had her own ticket fixed.   'If they're investigating cops, I don't understand why they're not investigating her,' said a lawyer defending a case Troiano is prosecuting.

The NYPD is only investigating whether precinct cops helped Troiano after her alleged non-arrest for DWI.

Troiano has declined comment.
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A couple of observations:  Miss Troiano is accused or alleged  to have committed these offenses not convicted of anything, yet, although you'd not know that from the tenor of this diatribe. . . , um, story.  Secondly, Miss Troiano must not have made many friends among the cops, press, et al.  Referencing the Bad Lawyer archives should demonstrate that I'm no friend of drunk drivers, especially when they have law licenses, this story is pretty over the top.  It makes me wonder who's dog, Ms. Troiano kicked.

F&(k^%g Prosecutor

Martha Neil at the ABAJournal.com  links to the story at TimesNews.net story by Jeff Bobo about the Hawkins County (Tennessee) prosecutor (mugshot) who exchanged leniency for sex  from female drug offenders or their mothers.  This is an excerpt from reporter Bobo's story:

"Former Hawkins County prosecutor Doug Godbee has been arrested on a sealed indictment warrant charging him with one count of official misconduct in connection to sexfor-leniency allegations.  The charge is the result of nine complaints made by female drug defendants or mothers of female drug defendants who claim Godbee offered them leniency in court in exchange for sexual favors. In some of those cases sexual contact is alleged, but most involve allegations that Godbee solicited sex in exchange for a favorable outcome in a criminal case.

Godbee, 57, [ . . . ] was named in an April 25 sealed Hawkins ounty grand jury indictment but couldn’t be served with the warrant because he was hospitalized at the time following an apparent overdose of sleeping pills that occurred at his home on April 20.

Special prosecutor Russell Johnson of Kingston told the Times-News Tuesday that although there were nine civil complaints filed against Godbee, and nine alleged victims, the best strategy for a criminal prosecution was to lump all those complaints into one charge of official misconduct. [. . .]
Godbee was arrested Monday evening and released from the Hawkins County Jail on $10,000 bond. A June 3 arraignment date was tentatively set in Hawkins County Criminal Court, although that may change due to the need for a special judge being appointed by the Tennessee Supreme Court to preside over the case. Official misconduct is a Class E felony with a sentence range of one to six years and a fine of up to $3,000. Defendants with no previous record, such as Godbee, are eligible for judicial diversion. In such cases probation would be the sentence, and if the terms of probation were met the defendant’s record would be expunged.

'I’ve already indicated, when his attorney asked me, that I would oppose that,' Johnson said.

Godbee served as an assistant attorney general in Rogersville for more than three decades.  He resigned in 2006 amid allegations he had a sexual relationship with a victim in a case he prosecuted but was reinstated in 2008 after an investigation didn’t result in criminal charges.

He resigned again last September after a female drug defendant and her mother came forward with new allegations."
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Wanna guess how many victims are out there over his 3 decade career? 

Macomb County Prosecutor--Update

On Monday, the Bad Lawyer brought you the story of the Detroit-area prosecutor who went postal on the voicemail of a local candidate.  I provided you a link to the local news account with the mp.3 of the voicemail. 

The Detroit Free Press is reporting that Macomb County prosecutor, Eric Smith (pic), has now apologized for his "language," essentially the repeated threatening use of the "f-word."  He may face misdemeanor criminal charges, and certainly disciplinary charges as I speculated.  Here's the update:

"The Macomb County Republican Party is preparing a complaint for the state Attorney General's Office, with audio recording, of a profane and allegedly threatening message left Saturday by Macomb County Prosecutor Eric Smith to County Commission candidate James Perna.  Perna is running against Smith's brother, Bob Smith Jr., for the 12th District seat.

Party Chairman Jared Maynard said Monday the party also is preparing to file an attorney grievance complaint. If a lawyer violates a criminal law, the Attorney Grievance Commission has a basis for bringing a formal complaint against the attorney with the Attorney Discipline Board, said Larry Dubin, professor at University of Detroit Mercy School of Law. If there is a conviction, he said, the commission can rely upon that conviction. If not, the commission can independently prove that a criminal law was violated.

Michigan State Police Capt. Harold Love said his agency will follow up on a complaint made by Perna with State Police. If charges are sought, the matter could be referred to a special prosecutor or the Attorney General's Office, said Joy Yearout, spokeswoman for the office.

Eric Smith admitted that he left a profane message on Perna's voice mail, in which he called Perna a liar and said that  'we are going to (expletive) bury you' over a negative campaign mailer sent by the county Republican Party.  Smith said he regretted leaving the message and apologized for his language.

Maynard said he believes Smith is 'absolutely guilty'  of violating the state law called malicious use of service provided by telecommunications service provider.  According to the law, 'a person is guilty of a misdemeanor who maliciously uses any service provided by a telecommunications service provider with intent to terrorize, frighten, intimidate, threaten, harass, molest or annoy another person.'"
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The incredible arrogance of these County prosecutors needs to be circumscribed.  One hopes that the the voters in Macomb County will take appropriate action, unlikely but one can hope.

Macomb County Prosecutor: "You Mother*******. I Am Going F****** Bury You"

Macomb County, Michigan is a part of the Detroit-metropolitan area.  The Macomb prosecutor, Eric Smith (in pic, right) like many County prosecutors around the US has an inflated view of himself and his powers as evidenced by the voice mail message quoted above and set out in the MLive.com account of a call (at the MLive link you can hear the recording of the call left on voice mail, for yourself) Prosecutor Smith made to James Perna, a candidate for commissioner running against Smith's brother.  Here's reporter, Jeff Wattrick's story:

"Eric Smith, the Macomb County Prosecutor [ . . .] left a threatening and profane message on James Perna’s voicemail. Perna is running againg Smith’s brother, Clinton Township fire commissioner Bob Smith, for a Macomb County Commission seat.   The dispute stems from a basically vanilla bit of negative campaigning. Perna sent out a campaign mailer claiming the entire Smith family has long relied on government jobs instead of working in the private sector. That banal slight led Smith to say this as Perna’s voicemail was recording:

"'Jim, this is Eric Smith. It’s 20 to 12. I’m glad you’re a man of your word, you lying mother******. Fine you want to take shots at my brother, he’s running against you. That’s fine. I think it’s a weak move but you want to do that, go ahead. You throw in my mom and my dad, who’s been dead for ten years…you mother*******. I am going f****** bury you. I hope you don’t mind, because you just opened the door.'

As political consultants Joe DiSano and Joe Munem point out on the Saturday edition of their 'To Guys Named Joe'podcast, Smith’s Henry Hill-esque voicemail may violate laws against using profanity in a threatening manner over the telephone.  ct. 30, Joe DiSano on Two Guys Named Joe: This is a devastating situation for Eric Smith. I think there are legal implications to this. I mean this is a sitting county prosecutor threatening to bury someone."
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In OurCounty, one of the finest local Small Court judges that I knew wanted to run for the OurCounty Court of Appeals.  This Judge lined up the grass roots political support for the electoral run for this seat, but on the eve of a crucial party convention the local County Prosecutor and two other party bosses (notably: now charged or admitted federal corruption felons) informed the candidate Judge that he would withdraw from the race.  In language not much different from that used by Smith, the OurCounty prosecutor told the Judge that his judicial career was over unless he withdrew from the race because he and his cronies had a politically preferred candidate. 

The arrogance of these County prosecutors is astonishing, and yet it would be a mistake to think that this is a rare occurrence.  This sort of thing went on in the decades before I became a lawyer and throughout my sordid career.  As a young lawyer I spent a few years in the offices of the lawyers who ran the local GOP, lawyers, judges, contractors, mayors, politicians and people wanting something from politicians of all stripe sat around the lobby of this office.  Favors and deals of all sorts were exchanged.  You see, what you might think is an anomaly is in fact common practice.  My fear is that with "reform" and the inevitable growth of "merit selection" of public positions including Judgeships--this sort of deal making continues but at a level you the voter will never be able to address.  The dirty deals now done dirt cheap, will be institutionalized and beyond your purse.

Prosecutor Smith screwed up, royally.  If he has half a brain, he will be convincing his brother to withdraw from the race; he'll report himself to disciplinary counsel; and, he'll issue an abject apology to the voters with a commitment to not repeat the error.  If he's lucky he'll survive the public reprimand that he deserves, and he'll be able continue his career as a wiser and more circumspect public official.  Right now, he's just a punk.

Curious Case of Constance Pinson Heard Candidate for DeKalb County Prosecutor

The Atlanta Journal-Constitution has the remarkable account of the local lawyer with serious prior disciplinary history who is a serious candidate to become the Dekalb County (Georgia) prosecutor.  As the Bad Lawyer I know I have a lot to offer the legal profession even from my lowly perch as a blawger, but run for public office?  I think not.  Then again, there's Yale Law graduate, Joe Miller, who is about aa unethical a character to come down the pike in a long time--who might just become a U.S. Senator from Alaska, of course that's Alaska.  Oh, and then there's: Sen. David Vitter, Sen. John Ensign, Sen . . . I digress, here's AJC reporter Megan Mattecucci's story:

"One of DeKalb County’s two candidates for district attorney has been suspended twice by the State Bar of Georgia.  Decatur attorney Constance Pinson Heard (pic) is running against former DeKalb Solicitor-General Robert James.  The two are competing for the seat vacated by Gwen Keyes Fleming, who resigned last month to become a regional administrator with the federal Environmental Protection Agency.

Records obtained by The Atlanta Journal-Constitution show Heard was suspended twice for violating State Bar standards. James has no complaints with the Bar, according to its records.  The state Supreme Court found Heard guilty of three Bar standards: dishonesty and fraud; willful abandonment to the detriment of her clients; and commingling clients’ funds with her own.

The director of the National Institute for Teaching Ethics & Professionalism, who is not involved in the DeKalb race, said he would be concerned about any lawyer who violated those specific standards.  'I have no hesitation in saying that someone who has been suspended for violating [these standards] should not be a candidate for district attorney.' said Clark D. Cunningham, who also teaches law and ethics at the Georgia State University College of Law.

According to court records, Heard accepted retainer funds from clients for divorces but never filed anything in court on their behalf or represented them.

In 1998, she admitted to violating the Bar standards and agreed to a six-month suspension. She subsequently was suspended again in 2002 and ordered to return the money to her clients, court records show.  For both complaints, Heard failed to respond to the Bar’s notices, according to court records.

Heard said the complaints occurred when she was suffering from depression, but she declined to talk about the specifics of her condition.  'That was medical. I’ve never done anything criminal,'  she told the AJC on Tuesday.  Heard said she stopped practicing from 1998 to 2002 and was treated. The Supreme Court reinstated her in 2002 after completing a mental evaluation, court records show.

'I’ve been practicing successfully since then,' she said. 'I’m doing quite OK.'

But Cunningham said those Bar standards, which are set by the Supreme Court, are some of the most important rules that govern lawyers.  The three standards Heard was cited for are all punishable by disbarment or suspension -- the highest punishments.

'If the Supreme Court suspended a lawyer from practice, that means the court did not find any circumstances that excused the misconduct,' Cunningham said.

Both candidates said they hope voters make a decision based on their records.  'My record speaks for itself. Her record speaks, including multiple suspensions, speaks for itself,' said James, who resigned as solicitor-general last month to qualify for the race.  Heard, 63, touts 15 years of working in private practice. Before becoming a lawyer, she taught in Atlanta public schools and at what is now Georgia Perimeter College.

James, 38, has spent his entire 11 years practicing as a prosecutor, including working with the DeKalb and Rockdale County district attorney's offices. In DeKalb , he served as the special prosecutor for crimes against children. In 2006, he was elected solicitor-general.

Both candidates said they are focused on public corruption, along with making DeKalb safer.  Fighting public corruption is one of the reasons its is essential that the right candidate for district attorney win, officials said.

'There is no public official in the U.S. with more discretionary power than a district attorney or the equivalent position in the federal government. For example, a decision not to prosecute is not reviewable by any court or higher official,' Cunningham said. 'Such incredible power should only be given to persons who exemplify the utmost in integrity and ethics.'"
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Some of the finest, most profound, and probably ethical people, I know, are active in recovery and professional mental health programming.  Could you reasonably expect that some of us might be able to one day, honorably serve in positions of trust and public service after recovery?  Sure.  Might one of us prove to be more ethical and more honest than someone who has not experienced what we have experienced--you betcha! 

Examples of this paradox work themselves out around the country all the time, witness, New York's Eliot Spitzer, Maricopa County;s Andrew Thomas, Cuyahoga County's William Mason--all paragons of piety and ethics.  All gentlemen who were all quick to see the moat in the eye of others but blind to their visual defects. 

Now objectively, does the idea of a lawyer who has been disciplined multiple times with a history of depression sound like a good candidate for prosecutor?  No.

Does Constance Pinson Heard sound pretty clueless?  Yes.

It's Official, Kratz Quits!

'Felt a need to follow up, Cap Times, is reporting that "sexting" Wisconsin DA Kenneth Kratz resigned. 

Kratz Quits!

Madison.com is reporting that disgraced Calumet County, Wisconsin, DA, Ken Kratz, the so-callled "sexting" prosecutor has agreed to resign.  Here's the link to the breaking story. 

DA Kratz is an Ass--Further Complaints, Removal Inevitable, Suspension to Follow?

According to the Wisconsin State Journal, this AM the DA Kratz harassment count is now at 4 women.  Expect District Attorney Kratz to be removed from his public position, and with this sort of situation his eventual suspension is now highly probable. 

I am at a loss as to what these Legal Lotharios think female clients want from them apart from competent and effective representation.

At the following link you can read an extraordinary letter from the Wisconsin Department of Justice concerning the Kratz investigation that went nowhere and the instructions by the DOJ to reopen the investigation.

"Use Creative Writing!"

The Deputy County Attorney who was singularly most instrumental in Sheriff Joe Arpaio is being fired according to the Arizona Republic.  According to reporters Yvonne Wingett and Michael Kieffer Lisa Aubuchon (pic, lwft) received the letter required under Arizona law, preliminary to her discharge as a "merit" employee:

"A controversial prosecutor faces imminent firing after a five-month inquiry into her role in filing criminal charges and a civil suit against judges and county officials on behalf of then-Maricopa County Attorney Andrew Thomas.   The Arizona Republic has learned Deputy County Attorney Lisa Aubuchon was sent a 'pre-termination letter last week, an initial step in the firing process.

Aubuchon has been on paid administrative leave since April, when Thomas resigned as county attorney to make a failed run for Arizona attorney general.   Interim County Attorney Rick Romley fired two high-ranking prosecutors from Thomas' tenure when he took office. The other prosecutors served at the pleasure of the county attorney. Aubuchon, however, was protected as a 'merit' employee and could be fired only for cause. Romley ordered an internal investigation into her conduct.

Aubuchon has until today to respond to facts stated in the pre-termination letter. The office would not reveal those details.   Aubuchon is entitled to a meeting with top officials within the County Attorney's Office to plead her case. Barring last-minute evidence, she likely will be fired.

Aubuchon has worked in the County Attorney's Office since 1996 and was head of the office's charging division under Thomas. In that capacity, she determined if and when criminal charges would be filed. Aubuchon generally was regarded as the go-to lawyer in the political-corruption cases pursued by Thomas, Maricopa County Sheriff Joe Arpaio and Arpaio's chief deputy, David Hendershott. All of those cases were dropped or dismissed, and in at least one case, a grand jury refused to hand up indictments and ordered Aubuchon to 'end the inquiry.'

Calls to Aubuchon and her attorney went unanswered Thursday.

In past conversations with The Republic, Aubuchon asserted she had done nothing wrong, saying, 'I would never file anything for a political purpose.'

The County Attorney's Office would not comment on its investigative findings leading to the pre-termination letter, but Aubuchon has been involved in numerous recent legal battles:

• She was the prosecutor who obtained indictments against County Supervisors Mary Rose Wilcox and Don Stapley. The Wilcox case, regarding financial transactions, was thrown out by a judge who ruled that it was politically motivated. One Stapley case, also regarding financial issues, was subsequently dropped. Another was thrown out on technicalities, and during an appeal, a special prosecutor discovered that many of the charges had been filed after the statute of limitations had expired.

Aubuchon also tried to obtain indictments against Superior Court judges and other county employees but was rebuffed by a county grand jury. And, at the request of Thomas and Arpaio, she authored a civil-racketeering lawsuit against county officials, Superior Court judges and private attorneys, alleging a conspiracy to keep Thomas from investigating the supervisors and a $340 million court building under construction. The suit was dropped.

• Along with Arpaio, Thomas and Hendershott, she is being investigated by the U.S. Justice Department for alleged abuse of power. The State Bar of Arizona also is looking into possible unethical conduct by Aubuchon.
• Last month, The Republic learned that Aubuchon's attorneys in the Bar investigation had hired private investigators to research and follow an out-of-state investigator who was in Arizona conducting the Bar inquiry.
• Aubuchon has filed a $10 million notice of claim against the county, alleging that county officials smeared her reputation and destroyed her career. 

New details about Aubuchon's actions emerged this week in an internal Sheriff's Office memo in which Deputy Chief Frank Munnell asked that Hendershott be placed on leave and investigated for alleged misconduct, mismanagement and criminal activity.

Munnell alleges in the 63-page memo that Aubuchon told sheriff's investigators to use 'creative writing' to write a search warrant allowing them to search the offices of all five members of the county Board of Supervisors.  Investigators were incredulous, Munnell wrote, and one lieutenant pointed to each of his subordinates and said if he  'found out that any one of them used creative writing, or wrote a warrant without the facts, he would fire them.'

Munnell alleged that during that meeting, Aubuchon pulled out a previously written search warrant used for a case against County Supervisor Don Stapley.  The lieutenant countered that the warrant looked like a 'press release and not a valid search warrant.'  Aubuchon's response, alleged Munnell, was, 'Why don't you just do good police work? " Munnell wrote, 'The most shocking moment of that meeting took place when Aubuchon, who is supposed to be an impartial and ethical prosecutor, stated during the meeting, to the effect that if they couldn't get charges on Stapley, that he would be tried in the media.  The result of this contentious meeting was . . . the sheriff's personnel present in the meeting refused to author a warrant to search the offices of all the members of the Board of Supervisors,' Munnell wrote.

Munnell's memo also confirmed previous reports that Hendershott in April tried to create a position within the Sheriff's Office for Aubuchon."
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There are almost always public prosecutors like Aubuchon.  Lawyers who use their license as cudgels to achieve ends regardless of the means.  I think of he California prosecutor Benjamin Thomas Field who received a 5 year license suspension for comparable conduct.  Young lawyers and young judges can have too much power, it can poison egos and pervert justice.

When a lawyer is blessed to have a position of public trust, the power to convene grand juries, obtain warrants, and have citizens arrested and jailed, it's good to exercise these powers with wisdom; otherwise find another line of work.  Creative writing?

District Attorney Kratz Is An Ass--"Wanna Go To an Autopsy? Wear Your High Heels!"

I may have been the first "blawger" to report the story of District Attorney Kenneth Kratz, the "sexting" prosecutor who deemed it appropriate to come on to a domestic abuse victim.  At the time I originally wrote about this creep, I made a prediction--which I confess involved no great lawyer insight.   Nonetheless, I've been waiting to be proved accurate,  I said, "Are you thinking what I'm thinking?  If Kratz did this to one victim, how many other domestic violence victims did he come on to over the years?  Bet you...lots.  Others will turn up." 

Here you go, via the Wisconsin State Journal:

Weeks after Calumet County District Attorney Kenneth Kratz was caught sending sexually charged text messages to a crime victim, he shared confidential details of a murder investigation with another woman and invited her to wear high heels to the victim's autopsy, according to a letter obtained Monday by the Wisconsin State Journal.

In the letter sent to Gov. Jim Doyle on Friday, the woman called for Kratz's removal from office and an investigation into why the district attorney was not sanctioned for his improper attempts to strike up a sexual relationship with Stephanie Van Groll, whose ex-boyfriend Kratz was prosecuting on domestic abuse charges

The woman could not be reached for comment Monday. However, Doyle spokesman Adam Collins released a copy of the letter to the media Monday afternoon - with the woman's name blacked out - shortly before Doyle announced he would seek to remove Kratz once he receives a 'verified' complaint from a taxpayer in Calumet County. Van Groll lives in a different county.

Kratz, who has held his position for 18 years, has apologized for sending the text messages and said he would seek therapy. He began a medical leave on Monday, but his attorney has said he would fight attempts to remove him from office.  Kratz was also pressured to resign from the Crime Victims Rights Board, which he had chaired for 11 years, on Dec. 3 after Van Groll called Kaukauna police to report that Kratz had been harassing her by sending 30 text messages in three days.

Last week, another woman wrote to Doyle's office to say she had had a similar experience with Kratz, 50, after the two met on the online dating service Match.com in December.

'We exchanged a few emails and eventually agreed to meet for dinner," she wrote. "I was hesitant since he had written some things that were inappropriate to say to someone at that stage of communicating, and also seems to vacillate between kind and interesting and insecure, impatient and demanding. But I figured that as a public figure in a position of authority, I should be safe with him.'"
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More to come, I assure.  Folks like Kratz are opportunistic perpetrators.  They do what they do when they think there is a reasonable probability that they won't be found out. 

Snakes in the grass.

Benjamin Thomas Field, California Prosecutor Disciplinary Suspension Update

In February I reported on the proposed long disciplinary suspension of Benjamin Thomas Field.  The ABAJournal.com is confirming that the California Supreme Court upheld a lengthy 4 year suspension for this attorney.  This is a very unusual outcome ion a disciplinary case involving prosecutorial misconduct;  as I said at the time, there is at least one Judge on the bench, here, in OurTown who by the standards Mr. Field is being held to, should have been disbarred. 

Please go back and read the original post at the link which also had a link to the recommended disciplinary action.  As I said at the time, I really had ambivalent feelings about the action taken against this guy.  There certainly is good reason for the steps taken by the disciplinary authorities just from the standpoint of failing the taxpayers on both a fiduciary and a public safety basis.  But it also seems pretty clear that this is a kid who lost his way, and ultimately I have a sense that better mentoring would have resulted in a better outcome for this lawyer.  You see, I'm over-identifying. 

Prosecutorial Misconduct-Child Abuse Prosecution Blown

When the prosecutor lies about the law to the jury, he costs the taxpayers a costly prosecution for naught, and he costs the victims, justice. This is what occurred in this instance as reported the Tacoma News Tribune.  This is from Sean Robinson's article:

A decision issued Tuesday by the state appeals court overturned a South Hill woman’s convictions for first- and second-degree child assault.  The unanimous decision erases the conviction of Loni Venegas, who was charged in 2007 with assaulting her 12-year-old stepgrandson.   Judges from Division II of the state Court of Appeals cited wrongly excluded testimony, improperly admitted evidence and prosecutorial misconduct.

The case originally was argued before Pierce County Superior Court Judge Frederick Fleming. The prosecutors were Kevin McCann and Sunni Ko. The defense attorney was Judith Mendel. During the trial, Venegas said the charges were untrue and that the victim had fabricated stories of abuse. The boy had moved in with the South Hill woman after his mother died in a car crash.  Jurors convicted Venegas on June 6, 2008, after an eight-week trial. Venegas, then 34, was sentenced to 14 years and two months in prison.

The original charges cited repeated examples of assault on the child [. . . ]Separate charges were filed against Venegas’ husband, Remil Venegas, who pleaded guilty to a lesser charge of child mistreatment. State appeals judges ruled that expert medical testimony by a defense was wrongly excluded. The expert had offered an opinion that some of the victim’s injuries did not stem from abuse, but the jury didn’t hear it.

Appeals judges also said that the lower court allowed testimony regarding 'other acts'  by Venegas that created unnecessary prejudice and should not have been permitted.   The ruling also said one of the prosecutors misstated the law during the closing argument of the trial. According to the ruling, the prosecutor told the jury, 'In order to find the defendant not guilty, you have to say to yourselves, ‘I doubt the defendant is guilty, and my reason is – blank.’ ' [WHAT!]

Appeals judges called the phrasing a misstatement of the law, noting the doctrine of presumption of innocence continues from the beginning of a trial to its end. They cited an earlier appeals decision from 2009, also stemming from Pierce County.  The earlier ruling reversed a conviction on similar grounds: misstatement of the presumption of innocence. Appeals judges scolded prosecutors for making the same mistake again. 'We reiterate that prosecutors who continue to employ an improper, ‘fill-in-the-blank’ argument needlessly risk reversal of their convictions,' appeals judges stated."
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This is really awful stuff.  This "step-grandmother's" behavior was beastial.  Now you see the problem.  The prosecutors' misconduct cost this child, and the taxpayers an important blow against child abuse. 
 
The thing is, you can actually see why the prosecutors in this case were motivated to act the way they did.  The defendant's alleged crimes were heinous, gut-wrenching, shocking to the conscience; but, the job description requires prosecutorial detachment and professionalism.  Not what went on in this case. 

City Attorney, Grabs Some Sex, Loses License

Holland, Michigan deputy City Attorney, Carl Gabrielse (pic) met a woman at the courthouse who had a pending legal matter with the Cirty of Holland.  Gabrielse told her that he could reduce the charges if she would have sex with him in the bathroom.  She did, he did.  Now he's a convicted felon, and probably on his way to disbarment. 

The link is to the original Holland Sentinel story on the episode. 

Benjamin Thomas Field--Bad Prosecutor

I get a news feed from a website called Legal Profession blawg which had the report from the California Bar Association concerning the heavy discipline imposed on a career prosecutor, a 5 year suspension over "prosecutoria misconduct."  The opinion can be read at the link. I read it with a real sense of horror at both the actions of Benjamin Field and the sanctions imposed on this guy. 

Apparently in California, win-at-all-costs prosecutors can actually lose their licenses to practice law.  In OurState, in Texas, in alot of places around the country this guy would be elevated to the bench, not sanctioned.  

Reading the entire opinion you do find that he was nominated for a Judgeship at one point, and Mr. Field was basically well-regarded by a lot of lawyers who are defense attorneys and Judges.  But what Field did in 4 cases: withheld exculpatory evidence, defied court orders, made flagrantly improper closing arguments, and in one instance ordered a prohibited dental exam on a minor to prove a tenuous point--all resulted in convictions being reversed and the taxpayers and citizens of California bearing the brunt of the misconduct, let alone the criminal defendants who after all had certain rights under the US and California constitutions. 

Mr. Field was a public servant and he screwed up in at least 4 cases, significantly.  He should be disciplined--but 5 years!  Harsh?  As harsh as I've ever encountered for "prosecutorial misconduct" that didn't actually rise to the level of criminal conduct by the prosecutor.

Bad Prosecutors, Arpaio's Boy, Andrew Thomas Takes the Stand

In the continuing car wreck that is Maricopa County, Arizona local politics there was an extraordinary proceeding yesterday at which Sheriff Joe Arapaio's consigliere, Andrew Thomas testified at a hearing to determine whether Thomas should be disqualified from prosecuting other county officials who are politically at odds with Sheriff Arapaio. 

The Bad Lawyer has followed these cases since thr outset of recent events that include hiring $1100 an hour appellate lawyers from D.C. to advance the personal animus of the Sheriff, the one who calls himself, America's Toughest.  The underlying story is that Maricopa County, which encompasses metropolitan Phoenix, Arizona is the land of the "snow bird." Seniors and others flock south in the winter months, and property values sky-rocketed until recent years.  In the view of Arpaio and others problems in Maricopa County are precipitated by illegal immigration from Mexico and Central American countries.  Arpaio's approach to crime includes enforcing federal immigraton laws, and his approach to enforcing state and local laws are said to involve racial profiling and discrimination especially against persons of hispanic heritage. 

Sheriff Arpaio's power increased with his perceived "tough" on crime approach and reckless disregard for the rule of law as embodied in Arizona and the US. Constitution, to an extent, which open warfare has erupted among elected officials and the judiciary vi-a-vis, the Sheriff.  Instead of reaching out to the other elected officials, Arpaio utilizing the office of the County Attorney, (who is the prosecutor, Andrew Thomas) began obtaining indictments of local officials and recently has taken to bringing federal racketeering lawsuits against County officials.    Think about this, this is sort of like suing your co-workers while claiming you can still provide services to them anf with for your clients--not real easy to do.  Thomas contends that he can sue his co-workers, prosecute his co-workers and still somehow provide services to the citizens of Maricopa County that they hired him to do.

Funny twist on this, this isn't the first time Mr. Thomas prviously obtained indictments against this very county official, Mrs. Mary Rose Wilcox.  In classic prosecutorial overkill he indicted Mrs.Wilcox on multiple, multiple counts accusing her in every variation on a theme of fraud, of false this-false that...for allegedly voting on matters that impacted an Hispanic advocacy organization to which Mrs. Wilcox or her husband was obligated to on loans.  All of these indictments agasint Mrs. Wilcox, and one other county official were dismissed by a Superior Court Judge outside of Maricopa County.  This wasn't what Arapaio wanted, he wanted the heads of these two county officials, so Thomas sought a second prosecution.  Originally, the case files were given to an out of county prosecutor Yavapai County prosecutor Sheila Polk she told Thomas that her review and investigation of the allegations against Mrs. Wilcox revealed no evidence of a crime.  Thomas demanded the files be returned and he went off and obtained a boatload of new indictments against Wilcox et al.  Prosecuor Polk fearing a miscarriage of justice courageously spoke up, penning an op-ed for the Arizona Republic.   Prosecutor Polk also testified, yesterday at the hearing seeking to disqualify County attorney Thomas from further prosecutorial involvement in these matters.  Polk said under oath that the Maricopa County Sheriff's department threatened her if she went public.  Does any of this scare you?  It should. 

Remember, the person not in the courtroom is the driving force behind all of it, Sheriff Joe Arpaio, America's "toughest sheriff." 

http://link.brightcove.com/services/player/bcpid30311461001?bctid=66899385001 The link is to the short video excerpts of the hearing.  You can see the witnesses for yourself including Andrew Thomas.